Now, let us see what is the effect in case on the basis of the assumption that they were in occupation of one bigha land as trespassers under Section 9 of the Land Acquisition Act. A person must have some interest for awarding compensation, for Section 9(1) of the Land Acquisition Act indicates that the compensation is to be paid "for all interests in such land". Section 9(3) assumes that an occupier may also be one such interested person who may or may not be entitled to compensation. Since sub-section (1) of Section 9 of the Land Acquisition Act indicates that the compensation is to be awarded "for all interests in such land", a question would arise whether a rank trespasser has got any interest in the land. Whether rank trespasser or occupier would be person interested in land or not has to be seen further in the light of sub-section (3) of Section 5-A of the Land Acquisition Act, which reads as under :
"5-A. Hearing of objections. -
(1)...
(2)...
(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act."
12. As has been said earlier, under Section 9 of the Land Acquisition Act also an occupier is entitled to notice to decide the question whether he is entitled to compensation or not. Under Section 23 of the Land Acquisition Act, compensation could be awarded only in respect of market value of his interest in the land on the date of publication of the notification under Section 4(1); the damage sustained by the such person; reasonable expenses incidental to consequential change in residence; in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and the damage resulting from diminution of the profits. An occupier has been deemed to have interest in land under Section 5 of the Act for the limited purpose and not for the purpose of deciding his interest under Section 9 of the Act. In absence of any such deeming provision in Section 23 of the Act, an occupier having no interest in land is not entitled to any compensation whatsoever.
Delhi High Court
Tule Ram vs Union Of India & Ors. on 6 November, 1997
Bench: A B Saharya, S Kapoor
1. This Regular First Appeal under Section 54 of the Land Acquisition Act has been filed against judgment and award of the Court dated 1st April 1985 on a reference under Section 30/31 of the Land Acquisition Act apportioning compensation in the ratio of 40:60 between the recorded Bhumidhar and the occupant.
2. Brief facts giving rise to this appeal are as under :
2.1 Land bearing khasra No. 249/2 measuring 19 bigha 7 biswas situated in village Dheerpur, Delhi was acquired under Notification dated 19th March 1981.
2.2 Mr. Tule Ram, appellant claimed that he was Bhumidhar of the land and that he was in possession of the land even during 1978-79 and 1979-80 and filed khasra Girdavari Ex.IP1/1 and IP1/2. He disputed khasra girdavris in favour of the respondents, Suraj Narain and Balesh Chand, respondents (IP 2 and 3). He claimed that the respondents never cultivated the land nor any cultivation was possible on the land measuring 18 bighas 10 biswas, since it was the shape of pits and only one bigha land was under cultivation. The respondents manipulated Khasra Girdawari for the period from 7.9.1980 to 22.2.1981 with the connivance of revenue officials although they were never in possession. Even if one supposes that entries were genuine, in favour of the respondents, it would not create any right, title or interest under Delhi Land Reforms Act. He claims he was himself cultivating one bigha cultivable land. He further claimed that the claimant was entitled to the entire compensation and it could not have been apportioned with respondents (IP2 and 3).
2.3 On the other hand, respondents (IP2 and 3) claimed to be in cultivatory possession of the land for about 10 years on and prior to the date of the notification. They disputed khasra girdavris produced by IP1 (appellant). They also claimed that since they had remained in possession for the last more than three years, they had become Bhumidhars.
2.4 Learned Additional District Judge on the pleadings of the parties framed following issues:
1. Whether IP No. 2 and 3 were in possession of the land, if so, to what effect?
2. What amount of compensation each party is entitled?
3. Relief.
2.5 The learned Reference Court just gave following finding without discussing the evidence on record:
"...at the time of acquisition IP 2 and 3 were in possession of the property but they were not in possession for more than 3 years. They had not become bhumidhars but they were in possession. So I award them 60% of compensation and 40% compensation to IP1...".
3. Having heard the learned counsel for the parties at length, following points arise for decision:
i) Whether respondents were in possession/occupation of entire land or only a part of it i.e. one bigha land? If so, its effect?
ii) Whether respondents were in possession as Bhumidhars on the date of acquisition?
iii) If the respondents had not acquired bhumidari rights, whether they were rank trespassers? If so, its effect?
4.1 In so far as the first point of possession/occupation is concerned, Suraj Narain, respondent stated that he and Balesh Chand were in possession of the land for the last 7-8 years before its acquisition. In the year 1980, possession of this land was taken from them at the time of acquisition. He produced Khasra Girdawari Form (Ex. P-1). From his cross-examination, it is apparent that Suraj Narain could neither remember Khasra number nor the date when the Collector took the possession of the land. He admitted that some land of Tule Ram was acquired before acquisition but he did not know the area of that land.
4.2 Tule Ram stated that he was Bhumidhar and was in possession before and till the acquisition of the land. He produced Khasra Girdawari IP-1/1 to IP-1/5 and on his behalf Khasra Girdawari PW-6 and PW-7 were also produced.
5. There is no dispute between the parties that name of Tule Ram is recorded as Bhumidhar even in Ex. P-1 and P-2. It is also evident from Ex. P-1 that wheat was sown in one bigha irrigated area and remaining 18.10 bigha land was comprised of Pits. It is obvious that it was vacant in February, 1981. In so far as Ex. P-2 is concerned, this entry was verified by Form P-5 for the Kharif 1980. It may incidently be mentioned that in Kharif 1980 nothing was sown in the entire 19 bigha 10 biswas. It is only on 22nd February, 1981, it was recorded that wheat was sown in one bigha land and that is also indicated by the list of changes.
6. As against it, Tule Ram has filed Khatauni for the year 1978-79 and 1979-80. Ex. P-1/1 which indicated that Tule Ram became Bhumidhar in the year 1963-64 in respect of the land in question. No changes were recorded in this Khatauni in the years 1969-70, 1970-71, 1971-72, 1972-73. Ex. P1/2, Khasra for the year 1974-75 indicates that Tule had sown Jwar in 1974 and wheat in 1975 in the entire area of 19 bighas and 10 biswas. In the year 1976, it was Tule Ram who had sown wheat in the entire area of 19 bighas and 10 biswas vide Ex. P-1/3. In the year 1977, Tule Ram had sown Jwar and wheat in February 1978 in the entire area of 19 bighas and 10 biswas. Tule Ram had sown Jwar in Kharif 1978 vide Ex. P-6. It appears from Ex. P-7 that in the entire 19 bighas and 10 biswas wheat was sown by Tule Ram. There are subsequent entries consistent vide Ex. IP-1/3. Ex. P-6 for the year 1978-79 and it indicated that in Kharif, jawar was sown in the year 19 bighas 10 biswas land by Tule Ram and none else. Similarly, in February, 1980 wheat was sown in the entire area. As such certified copy is inconsistent with Ex. P-2 if it relates to Kharif 1980.
7. It may further be mentioned that from the statement of Balesh Chand it does not appear that he had any idea about the area of the land, Khasra number etc. indicating that he was neither in occupation nor in possession. The fact that only one entry was recorded and that too probably by manipulating it, would not be sufficient to say that the respondents have acquired any right as Bhumidhar. It may be mentioned that consistent entries in favour of the Bhumidari rights of Tule Ram and Presumption arising from such entries in the revenue records in respect of ownership and possession of land would not stand rebutted by mere stray entry in favour of the respondents, Suraj Narain and Balesh, for the evidence led by the respondents, Suraj Narain and Balesh, is of uncertain character and inadequate to rebut the presumption. We feel fortified in this view on the basis of the observations made by apex Court in Sir Bhimeshwara Swami Varu Temple Vs. Pedapudi Krishna Murthi and Ors., .
8. It may be mentioned that the respondents neither claim that they were Bhumidhar nor disclose as to when they became Bhumidhar nor do they claim and plead any tenancy rights nor claim to be licensee. In such circumstances, Suraj Narain and Balesh could only be trespassers. If the first entry is of 1980 and the land has been acquired in the year 1981, then no occasion arose for the appellant to recover possession from the trespassers, Suraj Narain and Balesh before acquisition of land.
9. It is further notable Section 65-A of the Delhi Land Reforms Act, 1954 provides for consequences where Bhumidhar or Asami leaves his land uncultivated for "two consecutive agricultural years immediately preceding for a purpose connected with agriculture, horticulture or animal husbandry". Section 66 relates to entry upon an abandoned holding. Section 67 provides about extinction of the interest of a Bhumidhar, in following terms:
67. Extinction of the Interest of a Bhumidhar
The interest of a Bhumidhar in his holding or any part thereof shall be extinguished
(a) when he dies intestate leaving no heir entitled to inherit in accordance with the provisions of this Act,
(b) when the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land,
[(bb) when a declaration in respect of such holding or part is made under clause(a) of sub-section (6) of Section 65A.]
(c) when he has been ejected in accordance with the provisions of this Act, or]
(d) When he has been deprived of possession of his right to recover possession is barred by limitation.
[(dd) when his lease is terminated under clause (ii) or clause (iii) of sub-section (4), or clause (b) of sub-section (6), of Section 65A.]
10. No doubt Section 67 provides for certain conditions in which interest of a Bhumidhar would become extinct. But nothing has been shown that any of these conditions have been fulfillled. There is no declaration in respect of such holding under clause(a) of sub-section (6) of Section 65(A). It has not been established that his right to recover possession is barred by limitation. Incidentaly, it may be mentioned that notification under Section 4 of the Land Acquisition Act was issued on 19th March, 1981. It appears from Ex.P-1 that Tule Ram had sown wheat in Rabi crop which was inspected on 21st February, 1980. Thus, on the date of acquisition three years had not expired to say that right of Tule Ram had been extinguished and he could not recover possession.
11. Now, let us see what is the effect in case on the basis of the assumption that they were in occupation of one bigha land as trespassers under Section 9 of the Land Acquisition Act. A person must have some interest for awarding compensation, for Section 9(1) of the Land Acquisition Act indicates that the compensation is to be paid "for all interests in such land". Section 9(3) assumes that an occupier may also be one such interested person who may or may not be entitled to compensation. Since sub-section (1) of Section 9 of the Land Acquisition Act indicates that the compensation is to be awarded "for all interests in such land", a question would arise whether a rank trespasser has got any interest in the land. Whether rank trespasser or occupier would be person interested in land or not has to be seen further in the light of sub-section (3) of Section 5-A of the Land Acquisition Act, which reads as under :
"5-A. Hearing of objections. -
(1)...
(2)...
(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act."
12. As has been said earlier, under Section 9 of the Land Acquisition Act also an occupier is entitled to notice to decide the question whether he is entitled to compensation or not. Under Section 23 of the Land Acquisition Act, compensation could be awarded only in respect of market value of his interest in the land on the date of publication of the notification under Section 4(1); the damage sustained by the such person; reasonable expenses incidental to consequential change in residence; in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and the damage resulting from diminution of the profits. An occupier has been deemed to have interest in land under Section 5 of the Act for the limited purpose and not for the purpose of deciding his interest under Section 9 of the Act. In absence of any such deeming provision in Section 23 of the Act, an occupier having no interest in land is not entitled to any compensation whatsoever.
13. Since a trespasser has got no such interest in the land which could be sold, there could not be any market-value of the land. Consequently, on this score respondents, Suraj Narain and Balesh cannot claim any apportionment in the compensation award.
14.1 In this respect, Ld. counsel appearing on behalf of the appellant contended that a person who is merely a licensee is not entitled to share of compensation. A trespasser certainly would not be a person having any better interest in the land. In this connection, Ld. counsel for the appellant relied upon Shankar Govind Vs. Kishan AIR 1917 Nagpur
23. The following observations were made in that case:
"...The wajib-ul-arz recognizes not an interest in the land but a mere license to occupy: See Motiram Vs. Rup Khan (2). In England a license is not an interest in land within the meaning of S. 68, Land Clauses Act, 1845, so as to give a right to compensation for lands or any interest therein "taken for public purposes see Frank Warr & Co. Vs. London Council (3). It is true that to restore himself to the same position as he enjoyed before the site and the building thereon were acquired, the defendant must find another site but this would equally have been the case had he elected to sell the house privately. I hold, therefore, that the plaintiff is entitled to the whole of the compensation awarded for the site..."
14.2 Ld. counsel for the appellant further relied upon District Deputy Collector, Panch Mahals Vs. Mansangji Mokhamsangji Naik AIR 1928 Bombay
305. Following observations are noteworthy:
The ordinary rule that has been adopted in England in the case of compulsory acquisition of land occupied by tenants, whose tenancies are determined by notice or efflux of time, is that they cannot claim compensation for loss of profits, even though they had reasonable expectation of continuing in possession or having the lease renewed.
14.3 Ld. counsel for the appellant also referred to Tulsiram Tukaram Vs. K.L. Pande and Ors. AIR 1956 Nagpur 11. In that case, there was some difference of opinion between Chief Justice Sinha and Justice Hidayatullah and on difference of opinion, Justice S. Kaushalendra Rao gave his opinion in paragraph 39 as follows:
(39) In presence of the true owner, which fact clearly distinguishes the instant case from that of 1907 AC 73 (F), even a licensee was held to be not entitled to be compensated. See _ 'Shankar Govind Vs. Kishan AIR 1917 Nag 23 (T). A trespasser cannot claim greater recognition than a licensee. In competition with true ownership, the possession of the non-applicant even if adverse on the date of the reference could not, before it ripened into title, be considered as an interest entitled to be compensated under the Land Acquisition Act.
15. Hence, in the present case the respondents, Suraj Narain and Balesh, did not have any interest in the land in dispute to justify awarding any compensation. Interest in the present context should mean an estate or a right in property. The word 'interest' has a basic concept of right to have advantage or profit arising out of land. Since a rank trespasser would have no such estate or right in any such advantage or profit arising out of the land, he has no interest which could be said to be transferable.
16. According to Stround's Judicial Dictionary 4th Edn.
Vol. 3 the term "interest" means as under:
"INTEREST. (1) "Interest is vulgarly taken for a terms or chattle reall, and more particularly for a future tearme; in which case it is said in pleading that he is possed de interesse termini. But ex vi termini, in legal understanding, it extended to estates, rights and titles, that a man hath of, in, to, or out of, lands; for he is truly said to have an interest in them: and by the grant of to turn inter see suum in such lands, as well reversions as possessions in fee simple shall passe".
(37) "The interest of the landlord" (Landlord and Tenant Act 1954 (c.56), s. 30 (2)) means his interest from the time it originally arose, and an interest under successive head leases is a single interest for this purpose (Artemion Vs. Procopion [1966] 1 .Q.B. 878). The landlord's "interest" within the meaning of s. 30(2) is created at the date of execution of the lease and not at such later date as it may be expressed to commence (Northcote Laundry v. Donnelly [1968] 1 W.L.R. 562).
(38) Proprietary "interest" which gives a right to work minerals may be that of the owner in fee simple, of the lessee of the minerals or a person having a licence not presently revocable to work the minerals and carry them away: See Re East Yorshire Gravel Co.'s [1955] 1 W.L.R. 88; [1954] 3 All. E.R. 631."
INTEREST IN LAND (1) By the construction put upon the Mortmain Act (c. 36; repealed, but its provisions re-enacted by the Mortmain and Charitable Uses Act 1888 c. 42. no interest in land could be given by will to charitable uses, but this is modified as regards will of persons dying after August 5, 1891 (Mortmain and Charitable Uses Act 1891 (c. 73). There have been numerous and frequently conflicting cases defining what is such an interest in land. In Jervis v. Lawrence (22 Ch. D. 202), Bacon V.C. said "I believe there is a fault that has been committed in great many of these cases.
(21) An interest in land is not to be confounded with a mere CHARGE on land (per Page Wood L.J. Franks v. Bollans, 3 Ch. 718). See also Keith Vs. Twentieth Centaury Club, 73 L.J. Ch 549).
(22) (defense (General) Regulations 1939 (No. 927). reg. 51(2). A requisitioning authority may do "anything which any person having an interest in the land would be entitled to do in virtue of that interest," interest there means any interest or interests which any person may have in the land and not merely a right adequate to enable the occupier to do anything necessary or expedient for the purposes of the occupation (Demetiades Vs. Glasgow Corporation [1951] 1 T.L.R. 396). "Interest in the land" within this regulation meant any interest which a person might have in the land and was not restricted to what was necessary to achieve the object of the occupation (Demetriades Vs. Glasgow Corporation [1951] W.N. 108."
17. For the foregoing reasons, it is apparent that the respondent Suraj Narain and Balesh being rank trespassers are not persons having any interest in the land and as such they are not entitled to claim any apportionment.
18. Since the respondents do not claim to be tenants or lessee of Tule Ram, their case would not be covered by the ratio of the judgments of Mangat Ram Vs. State of Haryana, , Inder Prashad Vs. Union of India, , Col Sir Harinder Singh Brar Bans Bahadur Vs. Bihari Lal, .
19. In Union of India Vs. Ajit Singh, 1997(43) DRJ 169, the following observations were made in paragraph 9 of the judgment:
"9. ...The Court is required to take into consideration relevant factors, viz., the duration of the lease, the nature of the right to enjoyment of the leasehold interest and the improvements the tenant made on the land etc. It is equally settled law that if the Government is the owner of the land, before initiating the acquisition, it is entitled to terminate the lease and take possession of the lands in terms of the lease. Necessarily, in the above case the tenant cannot have any right to compensation as he is bound by the terms of the lease... "
20. In case the licensee who is in possession and whose licence has been terminated or in case of tenant, whose tenancy has been terminated or has come to an end by efflux of time, loose their interest in land appears to be the ratio of the above judgment. If it is so, one cannot say that any trespasser would have any better rights.
21. It was argued by the Ld. counsel for the respondents that since the possession being 9/10 of the ownership, the respondents would certainly have interest in land and in this regard Ld. counsel for the respondents referred to Manche Anege Akue Vs. Manche Kojo Ababio IV . There cannot be any dispute with this proposition, but there is a distinction between occupation and possession. Possession is authorised and legal occupation while occupation is a mere entry or remaining on the land without having any legal authority. A mere entry on land is not possession of land. The general rule is that where the possession is doubtful, the possession follows a legal title. A trespasser not having any right to possess or to enjoy the land, cannot claim any interest in the land within the meaning of Section 9 of the Land Acquisition Act.
22. For the foregoing reasons, we are of the definite opinion that firstly, the respondents, Suraj Narain and Balesh Chand were not even in occupation at the time of acquisition of the land, leave aside possession. Secondly, even if for the sake of argument, it is held that Suraj Narain and Balesh were in occupation of one bigha land out of 19 bighas 10 biswas land in terms of the entries vide Ex. P-1 and P-2, the respondents, Suraj Narain and Balesh, could claim apportionments in compensation only in respect of one bigha of land and entire amount of compensation in respect of the remaining portion measuring 18 bigha 10 biswas land would go only to Tule Ram, the appellant. Thirdly, even if it is assumed that they were in occupation of one bigha land out of 19 bigha 10 biswas land being rank trespassers did not have any interest even in one bigha land to claim compensation for acquisition of the land. In respect of each of the three counts the apportionment of compensation in favour of the respondents as ordered by the Learned Reference Court cannot be justified by any stretch of imagination.
23. For the foregoing reasons, we hold that only legal representatives of Tule Ram are entitled to claim compensation.
24. Therefore, the impugned judgment and award is set aside and the appeal is allowed, with costs throughout.
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